I am not seeing any information that the rail line has been abandoned in the document, if they had hard proof they could have provided that in the first few sentences, instead we get an 88 page drawl of book history rail line management etc bouncing around various subjects. They are doing a dance around the issue.

There is compelling evidence in the package indicating that the Estate, Conrail and New York DOT all acted in good faith under the FSP and that an abandonment did occur. While some of the documents are neither as clear or complete as I would like, they are acceptable given the standards of the time.

Were I sitting on the Board, unless there was compelling evidence that there was common carrier freight service provided subsequent to the deadlines under the FSP, I would find that the common carrier authority over the line had in fact been abandoned.

[Pause here -When you are through sputtering about how I must be anti-railroad or anti-Catskill Mountain you may continue reading]

This may actually be marginally better from a rail preservation standpoint since the county would otherwise have an excellent case for an adverse abandonment proceeding and there is clearly a constructive abandonment as there has been no physical connection with the general system for some years. If the line is considered to have been abandoned before the national Trails Act was passed then the provisions of the Trails Act do not kick in, that with the removal of the railroad the county may well lose title to many of the easements it currently holds and be forced into litigation over its use of those properties.

While I see several negative outcomes for the County (one of which, the cost of counsel drafting an an 800 page brief, has already occurred) given the history including the original default on the lease agreement which made this all possible, I do not see a particularly positive one for the railroad.

The val maps would certainly help those of us who are not intimately familiar with the territory, particularly if someone had the wherewithal to post them. An abstract of the 107s and 108s would also give save quite a bit of time in tracking down the original deeds. There are 38.7 miles involved here so if this were my case and I were to send a clerk to the National Archives to obtain these I would initially budget a week of their time along with the travel, hotel and copying costs. That alone would represent a significant portion of any retainer.

This post is meant to clear up any misunderstandings on the freight issue.

The Ulster County IDA spent $250,000 in 1986 to rehabilitate the line from MP 2.9 to 3.2, install a siding, and install a new switch with Conrail all for the purpose of providing freight service to a building built with IDA structured financing built alongside the tracks at the same time. This is why the CMRR's old lease started at MP 3.2 and not at 2.9. The alignment from Cornell Street to Smith Avenue was changed at this time. During CMB days the switch was north of Smith Avenue. This new switch was built just south of the same.

Kingston Systems, also called Kingston Associates, was a paper recycling business that occupied this building. This company was brought to Kingston by the IDA which arranged for construction of the building and siding. The plant removed polyethylene from coated scrap paper which was shipped from Georgia and New Mexico. Service started in 1987, and about one car a week was shipped to the plant (which was built between MP 3.0 and 3.1) in 1988. Conrail was supposed to service the customer directly, but because the tracks near Conrail were in the parking lot of a firm called Micronetics, there were time restrictions about when deliveries could be made, and sometimes the cars would only make it just past the switch if they were delivered by Conrail outside those times.

The CMRR occasionally picked up and spotted these cars during this period for Kingston Systems when CSX was not available.

Service ceased in 1991 when the plant went out of business. In 1996, Conrail removed the switch due to lack of use, but promised to replace the switch at a reduced price if freight service was again needed.

There were two occasions in the mid-2000s when the IDA attempted to bring new businesses that needed rail service (one a bio diesel plant) back to this site, but these were unsuccessful. Apparently CSX was less inclined to put back the switch than Conrail was, and this was not helpful.

EH

Last edited by eehiv on Tue Mar 06, 2018 2:43 pm, edited 2 times in total.

I was also somewhat flummoxed by the voluminous County reply. They needed a rather sequential and tight summarization (with precedents) to state the abandonment, explain how they either hold clear title or have agreements, and defend the issue that both federally and for state law purposes (reversionary agreements) that prior to the National Trails Act, removing the rail does not constitute reversionary trigger and still allow conversion of the ROW to a trail under current, not past, law. And explain how Conrail still served a portion of the line post Final System Plan abandonment, too, as that baffled me, for new customers, yet never filed a second abandonment either, or CSX when they pulled the switch. Even guessing it wasn't fully abandoned, who if anybody has to file now? Excellent question.

The issue here has absolutely nothing to do with the entire process of evaluating the corridor for a trail and how that was done, it has to do with a very fuzzy post-PC time of abandonment the continued into Conrail. This one is so fuzzy that the Corp asked for a ruling on it. That's all. It's really a pretty darn good question. And it's also true that as the original Ulster & Delaware was a state corporation, and the original deeds and condemnations were done under a state charter, that the STB can basically say that if the common-carrier issue is resolved but the reversionary deed language isn't, then toss it back to state court as it is a property, not service, dispute, as it already quit being a common-carrier after the Final System Plan. Problem is that you need federal approval for Interim Trail Use, and, uh, yeah, that takes the STB to step in and designate a corridor and an entity. Huh. And here we are...

Property language on old deeds can get tricky, a well as defining when abandonment occurs. Had a case like that in PA where two state-certified MAI appraisers came down on opposite sides in an OFA battle and the STB walked away from it, saying they were not going to arbitrate state charter language and deed language, but if the property was changing hands, seller had to provide a warranty deed to assure value for an OFA sale basis at the demanded fee-simple price for suspected easements. They couldn't, but it was later negotiated, and kicked down the road as a quit-claim deed. Really, the STB only walks into some of these as an arbitrator when it's a full OFA fight, and those are fairly rare.

The trick on the entire national trails act was that it transfers cleanly from a railroad to an entity that agrees to maintain the corridor as a 'railroad without track on it', which preserves corridor property rights even if the track is pulled and will rescind the corridor if the track ever needs to come back. The reason that had to happen was that before then, removal of the track was typically the trigger that allowed reversionary property rights to kick in unless the deed or agreement clarified it. And, here we are....

I'm looking forward to the STB reaction to the County filing, if for no other reason than the size issue. I seriously thought my computer hung when I clicked on it!

The area that I am talking about is between 8.33 and basin rd. What are the boundaries of the DEP area. Google Maps satellite shows industry on the 28 road side of the row. So is the ROW the extent of the DEP area?

Rather than me hosting an image with lines drawn on it to display here, use the link I posted previously. Your scroll wheel (on a mouse) will zoom in/out. Right click & hold and drag to re-position the map image. The standard finger swipes on touch screens should work, too.

NYDEP's ownership around the reservoir is shown in green The parcels I mentioned are on the NE corner of the reservoir at Rt 28. and Basin Rd - nos. 31.4-3-50 and 31.4-1-2.210 - that show no easement of any kind. South of 31.4-1-2.210 the ROW shows as Ulster County. To get parcel info from the map, click the "i" button on the menu bar. Then you can click any parcel(s) to get ownership info displayed on the left.

To clarify some of what I said earlier, often times no data will be displayed for active railroad and street ROWs especially, I assume (you know what that means), if it involves easements. Fee simple ownership for railroad rights of way will likely show tax information. But every county and state is different depending on their systems.

I think the past claimed or supposed or maybe abandonments mean nothing as the the revitalization group is interested in the rail line. The STB would have to read all the responses in but look forward what may be the plans ahead with the rail line. The County is going to have to bring forward and reveal their motivations straight up and stop hiding behind a data mass.I'm waiting to see what the Country reveals...or not, I have some theories. and its not in their response.

I've stated this before in other forums, but in light of Mr. Edward's latest comments (which I mostly agree with), I felt I would add a few more comments, especially since the most glaring (and highly significant) piece of evidence that exists within Ulster County's response, continues to be ignored.

All the parties keep forgetting one critical element - Penn Central was in bankruptcy.

I have had the pleasure of communicating with co-counsel for Ulster County about this very topic, since a document that is referenced in their exhibits appears to no longer be in the county's files (or so they have claimed with respect to my direct inquiry). What is believed to be contained within the document would direct the parties to the correct forum for adjudicating the matter.

The STB lacks the requisite jurisdiction to decide this matter.

45 U.S.C. §744(b) has been cited by all the parties to the proceeding. However, the Board's jurisdiction to decide the matter was expressly stripped away by one of the statutes contained therein.

45 U.S.C. §744(b)(3) states:

(3) Rail service may be discontinued, under subsection (a) of this section, and rail properties may be abandoned, under this section, notwithstanding any provision of part A of subtitle IV of title 49, the constitution or law of any State, or the decision of any court or administrative agency of the United States or of any State.

It is important to note --- Part A of subtitle IV of Title 49 includes all of the Board's abandonment regulations codified in 49 U.S.C. § 10903. This particular statute striped the ICC (and now the Board as the successor to the Commission ) of ANY involvement in decision making process.

So, if the Board can't address the question, who gets to decide the issue? ....

The venue with the appropriate jurisdiction to resolve the dispute is the US Bankruptcy Court for the Eastern District of Pennsylvania in Philadelphia PA. Only a bankruptcy judge presiding over the Penn Central's bankruptcy estate has the power to render a final decision regarding the regulatory status of the line.

With that stated above, you might ask - So where is the critical evidence that seems to be overlooked?

I turn everyone's attention to page 61 of the Ulster County reply. Page 61 is a part of Exhibit A to the verified statement of Mr. Christopher White. The document is the quit-claim deed made between Ulster County and the Penn Central.

Go to the last paragraph of the page and look for the paragraph which reads:

The paragraph states:

"That this conveyance is made pursuant to Order No. 3731 of the United States District Court for the Eastern District of Pennsylvania, dated September 7, 1978, in re Penn Central Transportation Company, Debtor, Bankruptcy Docket No. 70-347, which approved the sale and provided for the Premises to be conveyed free and clear of liens."

This paragraph demonstrates that the sale of the rail line was made pursuant to 11 U.S.C. § 363. For those who may not understand the significance, this is a provision in the Bankruptcy code which prevents Penn Central's creditors from continuing to go after the asset being sold. In layman's English, the line could not have been sold to Ulster County without the approval of the judge in the Penn Central bankruptcy case.

However, once the trustee obtained the Court's approval (after a hearing on the matter in which all parties were given proper notice so that they could raise objections), the trustee was free to dispose of the line and the buyer would enjoy the Court's protection from any future claims made by PC's creditors.

The § 363 statement contained:

1. The name of the Court with the appropriate jurisdiction.2. The specific bankruptcy Docket#3. The specific order number. 4. The date the order was issued.

Why is all this significant?

In order to understand why that disclaimer is so important, a quick review of bankruptcy law is required. Railroads are treated differently from other bankrupt entities.

Today, the bankruptcy statutes which cover railroads are codified at 11 U.S.C. § 1161 - § 1174. For this discussion, the three most relevant statutes are §1166, §1170, and § 1174. All three need to be read in tandem in order to understand the regulatory scheme I'll explain each below.

§1166 is the section which keeps in place, and makes applicable most of provisions of Part A of Subtitle IV of Chapter 49. (Part A contains ALL of the STB's regulations) However, the statute strips away one provision of Part A - that provision being the Board's abandonment regulations.

§1170 is the rail line abandonment statute. In this statute, the Court is given the authority to order a rail line be abandoned. In a "normal" railroad bankruptcy, Congress gave the Board an "advisory role", but made the final decision maker a bankruptcy judge. However, for abandonment's under the Regional Rail Reorganization Act of 1973 (3R Act), the ICC was given NO role at all in abandonment determinations. It was stripped of its advisory role. See: 45 U.S.C. § 744(b)(3)

§1174 is the liquidation statute. This statute covers the final disposition of assets. However, what is most important about this statute is one single word - "Shall". In the liquidation statute, the word "Shall" appears within the statute.

"May" vs. "Shall"

Now, many of you might wonder aloud - What the hell does that mean? May vs. Shall.

In the various statutes quoted through out this thread, the word "may" is used. This single word has significant meaning. It makes the statute "permissive". In plain English, it means the subject of the statute has permission to do what the statute says, but it does not compel the subject to follow through with the authorized action. It leaves the final decision up to the subject who is authorized to take the authorized action.

There in no discretion when the word "shall" is used. In legalese, it is a command. In plain English it means - you will, period.

So, what does 11 U.S.C. § 1174 say? Well, it says:

"On request of a party in interest and after notice and a hearing, the court may, or, if a plan has not been confirmed under section 1173 of this title before five years after the date of the order for relief, the court shall, order the trustee to cease the debtor’s operation and to collect and reduce to money all of the property of the estate in the same manner as if the case were a case under chapter 7 of this title.

Of significance to this discussion, is the fact the the Bankruptcy Court had confirmed a plan of reorganization in the same year as the sale of the line Ulster county. For those familiar with legal citations and how to look up decisions: In re Penn Cent. Transp. Co., 458 F. Supp. 1234, you will find the Court's confirmation order regarding PC's reorganization plan. The order was issued on March 17, 1978. If you note above, I showed you all where to find the reference to the Court's sale order of Sept 7, 1978.

In approving the plan of reorganization, the Court found the following:

The Court stated:

"On April 1, 1976, the Debtor's rail properties designated in the Final System Plan were conveyed to ConRail. Of the retained rail lines, some are being operated under RRRA-funded subsidy agreements with state and local governmental entities.

As a consequence of all this, the Debtor's estate now consists of real estate and other investments not acquired by ConRail, plus the eventual right to receive ConRail securities (backed by USRA Certificates of [**40] Value) in exchange for the Debtor's rail assets conveyed to ConRail." (emphasis added)

The Court went on to further state:

" The Plan contemplates that most of the other assets (herein referred to collectively as the "retained assets") will be liquidated in an orderly fashion during the next 10 years pursuant to an Asset Disposition Program. This is a very detailed and carefully constructed plan of liquidation, and there is reasonable certainty as to the amount and timing of the fruits of that program." (emphasis added)

Eight months after confirming the plan of reorganization, the Catskill Mountain Branch was liquidated. Given the Court's mandate under 11 U.S.C. § 1174, the Court, in all likelihood, addressed the issue raised within the U&DRRC's petition. If any operations had continued or existed, the Court would have ordered any operations to cease when it issued its September order conveying the line to Ulster County. There can be no doubt that the Court was required to order operations to cease when the line was liquidated.

When you also take into account and include the various notices that Ulster County supplied within their pleading, there can be no doubt that all the required notices appear to have been given. Since the line was being liquidated, the Court would have likely found that the line was abandoned so as to have removed any regulatory barriers to concluding the sale.

NOTE: THE REASON NO ONE CAN FIND A RECORD OF THE ICC ABANDONMENT AUTHORITY IS SIMPLE --- IT WAS THE COURT THAT ORDERED THE LINE BE ABANDONED.

I have asked the County if they have a copy in their records of the Court's September § 363 Order. So far, I've been told that they are still looking for it. I'm pretty sure that order will contain a definitive finding of fact regarding the regulatory status of the line. I cannot imagine a scenario in which the Court would not have found that the line was "abandoned." However, if there was an issue over title to the right of way, the Court likely would have fashioned its order in a manner most favorable to the County and the Estate.

Needless to say, the only venue with the appropriate jurisdiction to resolve this issue is the Bankruptcy Court. See: 11 U.S.C. 1334

So with that, I conclude this missive and yield the floor to the masses for comments and criticism.

They are looking for the evidence that is driving their assumptions. They have removed rails based on assumption without full knowing where the abandonment is/was/maybe/or never happened. Keep looking...., my opinion, you cannot remove any rails without the document in hand and as long as the Revitaliazion group is interested, they should not remove any rails, BUT, if this line is to be returned to quality operation, you may as well rip it all out and relay it back in with better quality trackage and railbase. And if your going to go electric you will have to bond the rails. No matter how you look at this it would take some millions of refurbishment. Your going to do this you need someone with a full commitment and the backing. You want something there that works for the people.

What is believed to be contained within the document would direct the parties to the correct forum for adjudicating the matter.

I hope I'm not missing something, but isn't one of the central issues a case of the county trying to, "Have their cake, and eat it, too?"In other words, if is was abandoned in the 1970s, the 'trails statute' is unavailable - yet they seem to be trying to claim a 1970s abandonment while using a 1980s statute. Which is it?That document - which the court should have a copy of - likely does indicate abandonment, which negates the ability for trail use.

They are looking for the evidence that is driving their assumptions. They have removed rails based on assumption without full knowing where the abandonment is/was/maybe/or never happened. Keep looking...., my opinion, you cannot remove any rails without the document in hand and as long as the Revitaliazion group is interested, they should not remove any rails, BUT, if this line is to be returned to quality operation, you may as well rip it all out and relay it back in with better quality trackage and railbase. And if your going to go electric you will have to bond the rails. No matter how you look at this it would take some millions of refurbishment. Your going to do this you need someone with a full commitment and the backing. You want something there that works for the people.

I think you just need to admit that you aren't willing to listen (or read) Trainlayer's analysis. You just hate the county, because in your mind "trains are good" and because the county is tearing out tracks, no matter what the factual or legal underpinning, they must be bad.

And no one has said a word about the FEMA money that was to repair storm damage to the railroad..... I wonder what happened to that?

Nothing happened to it. The expenses were approved, but no money changed hands. It is my understanding Ulster County chose not to execute those approved projects. The FEMA money only flows after the work has been completed as a reimbursement.

They are looking for the evidence that is driving their assumptions. They have removed rails based on assumption without full knowing where the abandonment is/was/maybe/or never happened. Keep looking...., my opinion, you cannot remove any rails without the document in hand and as long as the Revitaliazion group is interested, they should not remove any rails, BUT, if this line is to be returned to quality operation, you may as well rip it all out and relay it back in with better quality trackage and railbase. And if your going to go electric you will have to bond the rails. No matter how you look at this it would take some millions of refurbishment. Your going to do this you need someone with a full commitment and the backing. You want something there that works for the people.

I think you just need to admit that you aren't willing to listen (or read) Trainlayer's analysis. You just hate the county, because in your mind "trains are good" and because the county is tearing out tracks, no matter what the factual or legal underpinning, they must be bad.

Sorry, I know a little more than what your reading. evidence or non-evidence can say a lot. I have jurured a few times and I know what to expect and I am watching the clues. And you didnt read the last part of my post. You may as well rip out the track and fully rehabilitate it with forward going plans for the rail line as the Revitalization group may be looking for. Be careful how you interpret, I am not making this a me/you thing here, were here about railroad preservation aren't we...and you?

I am more on a wait and see what the next thing uncurls in this matter.

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